Once you think about where originalism came from and what it was supposed to do, you begin to suspect that it may have run its course.
One of the difficult areas for originalism involves state sovereign immunity. The Supreme Court, in a series of 5-4 decisions joined by the two originalist justices as well as the three other more conservative justices, has held that such immunity is protected by the Constitution. This is problematic, because it is not clear what constitutional text provides that protection. And certainly the 11th Amendment, upon which the Court has often relied, does not do so. The 11th Amendment only applies when a citizen of one state sues a different state, not when a citizen of one state sues his own state. So how can these originalists justices legitimately protect sovereign immunity?
Perhaps they cannot, but various originalists have tried. Earlier in my career, I wrote a paper that sought to textually justify sovereign immunity and other state immunities based on original public meaning of the term “state.” I argued that the Constitution used the term “state” to describe the original states and that the meaning of the term at the time signified a political entity that possessed various sovereign attributes. I then contended that the term “state” could be read as protecting certain attributes of state sovereignty.
In writing the article, I wavered back and forth between thinking it was the correct original meaning or merely the best argument for the Court’s decisions. One weakness of my interpretation, as Will Baude points out in the article discussed below, is that it places a great deal of weight on the single word “state.”
When I was writing the article, I also considered the possibility of reading the term “state” in conjunction with the Necessary and Proper Clause. At the time, I was exploring a view of the Clause that read it as not permitting the use of means that were inconsistent with the structure or spirit of the Constitution. As John Marshall wrote about the Clause in McCulloch v. Maryland,
Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.
If the term state recognized state sovereignty, then one might read that sovereignty as part of the constitutional structure. Therefore, a means of implementing a power that conflicted with state sovereignty might be unconstitutional. While I initially had a footnote mentioning it in the article, I cannot find it in the published draft and so I must have removed it prior to publication.
I thought of my paper when reading Will Baude’s new article on sovereign immunity. Baude defends such immunity on the ground that it is a backdrop – a common law (or other nonconstitutional rule) that continues to exist and that no entity has the power to displace. Baude argues that sovereign immunity was a common law rule at the time of the Constitution’s enactment. While a common law rule can ordinarily be overturned by the legislature, Baude contends that Congress does not have the power to displace this one. The reason is that, in Baude’s view, the Necessary and Proper Clause cannot be used to exercise “a great power.” The purpose of the Clause was to supply general authority to implement the enumerated powers, but the Framers would not have left very significant powers – Great Powers – to be found under this clause. Instead, they would have specifically listed such powers as a enumerated power. After all, one does not hide elephants in mouseholes. Baude claims that eliminating the traditional sovereign immunity of states might be a great power and therefore not something Congress could do under the Necessary and Proper Clause.
Baude’s argument is an interesting one, and connects up with his other work on the Necessary and Proper Clause. But just as I believed that the term “state” helped with my own interpretation of the Necessary and Proper Clause, I also believe that it helps with Baude’s argument. One difficult question for Baude’s view is how to determine whether something is a great power. If states were understood as sovereign entities, and that understanding was placed in the constitutional text, then that provides additional support for concluding that eliminating state immunities involves a great power.
The attempt to understand and justify sovereign immunity has been difficult. We are getting closer to understanding it. Baude’s paper is a significant step in that direction.